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Monday, July 23, 2012

Stranger than Fiction: The Lori Douglas Inquiry

This is about as sordid as it gets in the Canadian legal environment. I'm tempted to craft a clever and edgy title for this entry, but for some reason I feel compelled to treat it with a sort of grave respect.

For similar reasons, I'm not going to go into the details on facts. Google "Lori Douglas inquiry" and you'll find plenty of news stories happy to go into all the graphic details. All you'll get from me is this:

The Facts

This is a case of a woman in a position of great power and respect who has had very private personal images leaked into the public sphere. In light of this, can she continue to exercise the responsibilities associated with her position?

Lori Douglas is a Manitoba judge who was appointed to the bench in 2005. Prior to that, she was a lawyer, and practiced law together with her then-husband, Jack King. One of King's clients, Chapman, has alleged that King and Douglas sexually harassed him - King directed Chapman to a website where he had posted several graphic sexual photographs of Douglas, and tried to entice him to have sex with Douglas.

The Canadian Judicial Council is now investigating whether or not she can continue to serve as a judge.

Allegations

There are four allegations of misconduct:

(1) She was allegedly a party to the sexual harassment of Chapman;
(2) In the judicial application process, there is a question "Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?", to which Douglas answered "No" on December 17, 2004.
(3) The photos themselves continue to be available on the internet, and "could be seen as inherently contrary to the image and concept of integrity of the judiciary, such that the confidence of individuals appearing before the judge, or of the public in its justice system, could be undermined."
(4) There is also an allegation that Douglas misled independent counsel regarding a modification to a journal entry describing an encounter with Chapman.

Preliminary Reporting

The inquiry is ongoing, but the evidence thus far, as it has been reported in various news sources, suggests that the sexual harassment was King's idea, and that Douglas knew nothing or next-to-nothing about it. The implication thus far appears to be that Douglas posed for the photos for King - which, despite their irregular content, is hard to criticize in the context of a spousal relationship - and that King posted the photos online without Douglas' knowledge or permission.

If she participated in the sexual harassment, all bets are off. If she was complicit in the online publication of these photos, I also wouldn't feel too sorry for her. But I'll proceed with my analysis on the assumption that King was, in fact, a rogue, as Douglas' defence is alleging.

My Thoughts

First, let's discard allegations 2 and 4. Not to say that they wouldn't be serious, but they're allegations of covering up alleged wrongdoing. If there was no wrongdoing, then a cover-up is both less likely and less serious. Further, on allegation 2, there's a reasonable argument to be made that the question is overbroad in the first place, and that expecting somebody to disclose something that is inherently personal because of the prospect that it might become an issue in the future would require more specific questions.

On allegation 1, if Douglas' defence is right on the facts, that Douglas was not a party to the sexual harassment, then obviously she can't be held to account for that.

Allegation 3, however, is more troubling.

A third party posts compromising explicit images of her online, and so she can no longer sit on the bench, occupying a position of respect, power, and authority. This is the nature of the allegation.

There are multiple sides to this argument.

The photos undermine the respect the community must hold for a Judge

The Toronto Star's Heather Mallick has made this argument relatively well: "Mental images in the courtroom will do her in". People will no longer see an authoritative figure in the robes, but rather will see the subject of those photographs. How do you come back from that? Will it undermine the respect lawyers must have for the bench? Probably not - most lawyers, at least, should be professional enough to see past this...so to speak.

However, it may undermine the respect that parties have for the bench. A judge comes to a conclusion and, subject to appeals on errors of law, their conclusion is essentially binding. People respect that in large part because they respect the people on the bench. Without that respect, will it undermine the respect that parties to litigation have to the judicial process? If I am a criminal accused, how will I feel having somebody of whom I have seen pornographic images passing judgment on me?

Douglas is victim, not a wrongdoer, and should not be punished for being victimized

An analogy has been made to punishing a rape victim. Mallick rightly objects to that comparison. It's not on that level; the comparison demeans the physical assault suffered by rape victims.

But the point isn't wrong. From the sounds of the case thus far, it seems that Douglas has done nothing wrong. Posing for unusual sexual photos taken by her husband...well, it may not be a smart thing to do, but it isn't misconduct. Nothing illegal, and really nothing that even offends any objectively reasonable social norms. The husband posts them online...not illegal, socially inappropriate, but really not her fault, and very much a violation of her own privacy. She permitted her husband to take compromising photographs, and now they're posted on the internet for the whole world to see. That's simply offensive.

That being said, this argument in and of itself doesn't get me to the point of thinking that it should save her job. Being a judge does require a solid reputation, among other things, and even though one may be innocent of the acts which tarnish one's reputation, that simply doesn't get around the problem. The judiciary must be, and must be seen to be, above reproach.

Still, there's another issue here...

I'll ask the question: Would we be so concerned if it were a man?

Irregular sexual conduct, and even sexual misconduct, involving men in positions of power and authority is common. It doesn't undermine their authority. The semen stain on Lewinsky's dress is a classic example of this. Clinton cheated on his wife and had a sexual relationship with an intern - and even lied about it afterward - and not only kept his job, but is still regarded as having been a very effective and well-respected president. A good husband, father, person? Maybe not so much. But a good president, absolutely. Most people are able to make the distinction.

On the socially conservative right wing, family values are regarded as more important for public figures, and so sexual misconduct is often a bigger scandal. Even then, though, it isn't fatal. Consider "Vikileaks", in which details of Vic Toews' messy divorce were leaked on Twitter, including his affair with his babysitter, and the most controversial aspect of it was that they were Tweeted by a Liberal Parliamentary staffer (dirty politics) from a Parliamentary computer (which is, technically, a misuse of government property, albeit in the same way you're misusing your employer's property by checking your hotmail from your work computer).

The point is this: With men, society has no significant difficulty separating their personal/sexual lives from their public/professional images.

A sex scandal involving a woman in power, however, raises questions as to whether or not she can continue to garner the respect required of her position. So Douglas is at risk of being fired.

Firing a judge is something that has never happened in Canada. The process is that the Canadian Judicial Congress recommends to Parliament that the judge be removed, then Parliament can vote on it. Only twice in Canadian history has the CJC recommended a judge's removal, and both times the judge resigned in the face of that recommendation. Once was the relatively recent case of Justice Paul Cosgrove (2009), after his complete bungling of a murder trial, finding 150 constitutional violations by the Crown (all of which were overturned on appeal), along with inappropriate and vocal criticisms of the police and Crown counsel and misuse of his contempt powers, threatening (without foundation) to hold witnesses in contempt, including the victim's son. The other case was that of Jean Bienvenue (1996), following a series of highly inappropriate statements and actions in the course of a murder trial, including an inappropriate analogy to Auschwitz (calling the accused worse) and an allusion to gender stereotypes regarding criminality: "But it has also been said, and this too I believe, that when [women] decide to degrade themselves, they sink to depths to which even the vilest man could not sink." Combine that with an inappropriate comment to a reporter about her miniskirt, a comment to a juror that tissues are a women's best friend, and a private conversation with jurors, among other things, and his impartiality was enough in question for the CJC to recommend his removal.

In other words, those seeking to remove Douglas from the bench are seeking an extraordinary remedy, something done only in the most egregious cases of misconduct by a judge, and it is argued that conduct which is not (or may not be) in the least bit blameworthy demands the remedy. And it is something that I can say with reasonable confidence would not be so argued but for her gender.

My final word is this: Professional women have personal lives, too, and they are entitled to them. To truly promote equality, we need to encourage the same kind of public disconnection from the personal scandals of women in power that we have established for men.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

3 comments:

One of Mallick's comments was a rejection of Douglas' lawyer's contention that 'right-thinking' people will not search out these photos. I'd like to think that the lawyer is right. I'm not sure he is.

Blogger maintains traffic stats, including the search queries which bring people to my blog. Suddenly, with a post that's been up for a day and a half, the *all-time* top search query which brought people to this blog is 'lori douglas photos'.

I don't care whether she knew what her husband had done at the time. She as fully aware opf the facts when she applied to become a judge and she knew about the payment of hush money to Chapman.She failed to disclose these facts from her application because it would be detrimental to her getting a lucrative appointment to the Bench (judges salaries start at $288,000 a year and they can retire with a 2/3 pension after only 10 years).

A judge must be held a higher standard than an ordinary job applicant. Lori Douglas fell below that standard and should be fired (without the lucrative pension).

I should note that, while $288k may seem like a lot of money, for many big-firm lawyers it really isn't.

That aside, it seems to me that your analysis is problematic: You don't care about her actual conduct, which may have been inappropriate...or not...but you feel that she should nonetheless have disclosed said conduct even if she did nothing wrong in the first place.

Why?

(Note, as well, that the phrase "hush money" is probably not appropriate. Most releases, in most litigation, include strict confidentiality terms and also 'no admission of wrongdoing' language. It isn't uncommon that people will settle out-of-court on such terms, even where liability is disputed, and there's nothing at all inappropriate about it.)